IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE Z. M. BASHIR
Dated: 13th day of August, 2020 SUIT NO: NICN/ABJ/189/2020
CHIBUZOR THEDDAUS OBIAJUNWA--------------CLAIMANT/APPLICANT
NATIONAL IDENTITY MANAGEMENT COMMISSION----------DEFENDANT.
C.T. Obiajunwa as the Claimant
No representation for the Defendant
The Claimant commenced this suit by filing an Originating summons on the 3rd of August, 2020 wherein three questions were set out for determination and pursuant to which six reliefs were sought.
The Claimant filed along with the said Originating summons, a Motion Ex-parte brought pursuant to Order 22 Rule 1 (2) of the National Industrial Court Civil Procedure Rules 2016 (sic) and under the Inherent Jurisdiction of this Honourable Court.
The said Motion Ex-parte is seeking for the reliefs as contained on the motion papers and same is also accompanied by a 20 paragraphed affidavit deposed to by ObiajunwaChibuzorTheddaus along with 1 exhibit, a certificate of compliance with section 84 of the Evidence Act, 2011 as well as a written address.
The said motion exparte was moved before this court by the Claimant/Applicant himselfas he referred this court to the processes filed and moved in terms of the motion papers.
Arising from the affidavits filed in support of the motion ex-parte, the summary of facts upon which this application is predicated is that the Claimant/Applicant posited that as a legal practitioner in Nigeria, he heard on the radio sometime in 2018 that the Defendant had made a Regulation adding several other transactions to its original list of transactions to which the use of the National Identification Number (NIN) shall be mandatory. He added that it was in July 2020 that he came across the said Regulation and upon a perusal of same, he found to the effect that section 1 (1)(u) requires the use of the NIN to be mandatory in filing civil and criminal actions in Courts or other arbitration process.
Claimant/Applicant posited that the requirement infringes on his right to privacy and exposes him as easy prey for criminals.
It is consequent upon the foregoing facts that the Claimant/Applicant contended that if the Defendant is not restrained by this court pending the hearing of a motion on notice, it is likely to commence the enforcement of the statutory provision in question and same will frustrate this suit.
In view of the forgoing facts and the relief sought by the Claimant/Applicant, I have taken due consideration of the arguments of the Claimant/Applicant as canvassed in the written address in support of this application and the sole issue for the determination of this application is to wit:
Whether or not there is a real urgency warranting a grant of the relief sought via this application and whether same can be granted by this court.
In resolving the sole issue, I must foremost posit that the courts have long stated the rationale for the grant of an ex-parte injunction in the case of Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419 where the court held that:
"The rationale for an ex parte application is the prevention of imminent irretrievable injury or damage to the right of one of the parties to the suit. Urgency is the necessary fulcrum on which the application rests. However, the basis of granting the application is also the existence of special circumstances and the urgency to protect the destruction of the right involved in the suit. Thus in the absence of a real urgency, the rationale for an ex parte application cannot be justified." Per KARIBI WHYTE, J.S.C. (P. 99, paras. D-F
In addition to the foregoing, the court in Itama v. Osaro-Lai (2000) 1 NWLR (Pt.661)515 cautioned that:
"It has been said over and over again that trial Courts should be reluctant to make interim orders ex-parte unless the circumstances are exceptional and the opposing party cannot be put on notice." Per OGEBE, J.C.A.(Pp. 11-12, paras. G-A)
Bearing the foregoing condition and caution in mind, the question to be considered is whether there is real urgency arising from the facts deposed by the Claimant/Applicant?
In answering the said question, it is imperative to consider the attributes and conditions for the grant of ex-parte application as stated by court in the case of League Management Company Limited &Anor v Mustapha Abubakar&Anor. (2017) LPELR-43426 (CA) where the court held that:
“The main attributes of an ex parte application for injunctive orders include that (i) it Can be made when there is a real urgency but not a self-induced or self-imposed Urgency; (ii) it cannot be granted pending the determination of the substantive action; (iii) it can be granted where the Court considered on a prima facie view that an otherwise irreparable damage may be done to the applicant before the application for an interlocutory or interim injunction can be heard after notice has been given to the opposing party; (iv) although, it is made without notice to the other party, there must be a real impossibility of bringing the application for such injunction on notice and serving the other party, (v) the applicant must not be guilty of delay – KotoyeVs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, OniahVsOnyia (1989) 1 NWLR (99) 514, IgbinobaVsIgbinoba (2003) 2 NWLR (Pt 803) 39, Central Bank of Nigeria Vs System Application Products Nigeria Ltd (2005) 3 NWLR (pt 911) 152.
In view of the first attribute stated in the foregoing authority, I am mindful of the fact that the court explained how an urgency can be self-inducedin the case of INT TOBACCO CO PLC v. BRITISH AMERICAN TOBACCO NIG LTD & ANOR (2013) LPELR-20494(CA).
“the real urgency envisaged by law was captured by Nnemeka-Agu, JSC, in the remarkable case of Kotoye v. CBN (supra), at 440 thereof, when he opined: "What is contemplated by the law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side. So, if an incident which forms the basis of an application occurred long enough for the applicant to have given due notice of the application to the other side if he had acted promptly but he delays so much in bringing the application until there is not enough time to put the other side on notice, then there is a case of self-induced urgency, and not one of real urgency within the meaning of the law. This self-induced urgency will not warrant the granting of the application ex-parte". See, Unibiz (Nig) Ltd v. C.B.C.L. Ltd (supra); U.T.B. Ltd v. Dolmetsch Pharm. (Nig.) Ltd (supra); Ideozu v. Ochoma (supra)” Per Obande Festus Ogbuinya, J.C.A (P. 30, paras. A-E).
Bearing the above authorities in mind, I have reviewed the affidavit in support of the motion Ex-parte and the affidavit of urgency and I must say that no real urgency arises as to warrant an order to be made ex-parte against the Defendant. This is concretised by the fact that the Claimant/Applicant stated that he had been aware of the Regulation in question since 2018 and came across a copy of same since July 2020 while this motion ex-parte was only filed on 3rd of August, 2020.
In addition, it must be reckoned that the Claimant/Applicant did not state the date the Defendant intends to commence enforcement of the statutory provision in question so as to consider the imminence of the urgency.
It is also worthy of note that the court in the foregoing authorities noted that the Applicant must not be guilty of delaywhile in the instant case, the Applicant who had become aware of the Regulation introduced in 2018, only chose to institute this action in August 2020. It is crystal clear therefore that the Claimant/Applicant is guilty of delay in bringing an application ex-parte.
Having said that, it is beyond doubt that the Claimant/Applicant has failed to present any cogent, convincing and compelling reason why the Defendants cannot be put on notice for the grant of the injunction sought to be made against it and a careful consideration of the foregoing shows clearly that a grant of the relief sought via the motion ex-parte willunfairly preclude the Defendant from having a fair hearing with regards to the relief sought.
In the final analysis, the instant application made ex-parte lacks merit and consequently, the sole issue for the determination of the motion ex-parte is resolved against the Claimant/Applicant as this court finds that there is no real urgency warranting the grant of the relief sought by the Claimant/Applicantand same is accordingly refused.
Ruling is accordingly entered.
HON. JUSTICE Z. M. BASHIR